Opinio Juris

A weblog dedicated to reports, commentary, and debate on current developments and scholarship in the fields of international law and politics.

Friday, April 22, 2005

UN Reform: How about the ICJ?

While we are thinking about U.N. reform, maybe we should think about reforming or even gutting the U.N.'s chief judicial organ: the International Court of Justice.

The ICJ announced this week that it has undertaken certain re-shuffling of its chambers. This appears to be pretty minor stuff (I never even knew they had a chamber for "summary procedure"), but it does make me wonder whether the ICJ has considered more aggressive reorganization to make themselves a bit more efficient and effective. The measures the ICJ announced last July seem almost hilariously minor because they are all directed at state-parties rather than the Court itself.

After all, the ICJ has 15 judges and they hear a ridiculously few number of cases a year. If you look at their docket, for instance, there are currently 12 cases pending or under deliberation. But this way overstates the amount of work they are doing. Last year, they issued exactly three judgments, and one was an advisory judgment. They held public hearings in four cases. Whew! What a busy year!

And not all the blame goes to the states for not filing cases. A number of the ICJ's pending decisions have been "pending" for over 5 years! (See here and here for examples). Now maybe the states themselves have held up the resolution of those cases, but this means that the ICJ's current workload is even lighter than it appears. It appears, in fact, that there is a job out there with better hours than being a law professor. Where do I apply?

All of this suggests that the ICJ (like the UN Human Rights Commission (thanks to Peggy for pointing out my original post's acronym of UNHCR is inaccurate)) is one of those fancy-sounding international institution that doesn't really matter very much. As Prof. Eric Posner argues here, it mattered little in the past, and even less today. Trends in U.S. legal scholarship, especially the Anne-Marie Slaughter inspired movement to shift attention away from formal international institutions to "networks of global governance" reinforce this feeling that formal internationalism is increasingly irrelevant today, even among international legal scholars.

I suppose if this is true, then perhaps UN reform should focus on those institutions that appear to matter more (I trust Kenneth Anderson or Peggy will tell me which ones) and junk the ones that don't seem to serve much useful purpose. Now that would be ambitious reform.

Ken Anderson on UN Reform

Ken Anderson has a series of posts on UN reform here that are well worth reading and considering. (Kofi Annan lays out his "in Larger Freedom" agenda in the current Foreign Affairs here.) I plan to post some thoughts of my own later.

U.S. Defeats UN Human Rights Commission Resolution on Guantanamo

In a little noticed vote, the U.S. defeated a resolution (8-22) that would have required the U.N. Human Rights Commission to request the U.S. government establish and impartial and independent fact-finding investigation into the treatment of detainees at Guantanamo Bay (an account of the vote can be found here at the bottom of the release). China, Cuba, Sudan, and Zimbabwe were among the 8 countries voting for the resolution.

These sorts of silly votes reveal, I think, that the UNHCR is seen by most countries merely as a forum for diplomatic showmanship without any serious commitment to neutral legal principles of human rights. (which is why, as Peggy noted here, Kofi Annan has proposed scrapping its current form.) Even if you think the U.S. deserves some international condemnation for Guantanamo, it would be galling to join governments like China, Cuba, and Sudan in condemning the U.S. Those same countries had, at the very same session, blocked a resolution that would have condemned the Sudanese government over the atrocities in Darfur and forced through a milder resolution assigning no blame.

Thursday, April 21, 2005

U.N. Committee Reviews International Anti-Terrorist Legal Framework

Committee II of the Eleventh United Nations Congress on Crime Prevention and Criminal Justice held a workshop yesterday to review the international anti-terrorist legal framework. As I've discussed here and here, this is a surprisingly underdeveloped area of international law given the fairly widespread consensus on the subject among most states.

Yoo and Waldron Debate Legal War on Terror

Columbia University's American Constitution Society hosted a discussion between Professors John Yoo (a leading constitutional and foreign relations scholar) and Jeremy Waldron (a distinguished Kantian legal philosopher) on legal aspects of the war on terrorism today, especially torture. As usual, tireless bloggers from Ex Post have "liveblogged" the debate here.

Here are some of the highlights. The hardest question for Professor Waldron:

Question: Let's assume a nuclear device is set to go off in an American city. Are we justified in using torture on 20 suspected terrorists to find out where it is before it kills thousands of people? Waldron: It's a bad and corrupt question, but I said I would answer it and I will. The answer that law and morality and religion requires that in no circumstances is torture to be used. The law is unambiguous, it's a total prohibition. And for some of us, our morality dictates the same. We would take responsibility for the consequences of the bomb's explosion, for the consequences of our morality.

The question is corrupt for a number of reasons. It is designed to bring the opponent of torture down to the level of the defenders of torture for a single case. The question is corrupt factually; it supposes that torture is capable of getting accurate information. The war on terror is a war of information and intelligence. To think primarily in terms of TV scenarios of massively important pieces of information that we know are there is not realistic. The nature of the relationship between torturer and victim means that the victim will tell the torturer what the torturer thinks he wants to know. Also, the question assumes that somehow we have the people who are trained to torture, yet who will do it only in this one case. There will be a cadre of torturers sitting around looking for work. There will be a culture of torture developed, changing the politics, training and discipline of the CIA and FBI. Everything we know about torture from the 20th century is that it grows out of control. We unleash everything depraved and sadistic in human affairs. We need to think about the trauma to the legal system, of having it be known that we have concocted room for torture. Everything that's had its reference on respect for human dignity begins to totter and crumble under this response of torture.

The hardest question for Prof. Yoo (OK, he didn't get any hard questions, but here is his most interesting response):

Question: Prof. Yoo, you stated that Congress has chosen not to take an absolutist position on torture, because the statute applies only overseas and to extreme and unusual cruelty. Could Congress regulate torture, and to what extent does the executive have un-reviewable authority?

Yoo: Congress made a distinction between torture and things short of torture, and Congress criminalized only the former. As an academic matter, Congress cannot criminalize the legitimate exercise of the president's power. If the president ordered coercive interrogation, can Congress prohibit that? Congress cannot say that it's a crime for the president to use a nuclear weapon or send armies to Europe. In extreme circumstances, the commander in chief power does extend so far as to be unreviewable. But the administration is not ordering or authorizing torture so this has not arisen yet.

Yoo: I view the function of a lawyer not to interject my own moral views into what the government should do. So I had to answer whether the GC applies, a distinct question from what we should do as a matter of policy. Applying the GC to detainees isn't legally compelled. I don't think limits on presidential power are compelled by treaty. A lot of these arguments you and Waldron make, I don't disagreewith them, but they should be considered separate from the legal analysis.

Japanophobia Strikes Shanghai: It's Very Real

I plan to post quite a bit more on the continuing China-Japan row later this week, but I couldn't resist passing along these remarkable pictures from a Chinese "BBS" list with pictures of the some recent anti-Japanese protests in Shanghai. Just keep scrolling down, even if you don't read Chinese, you should easily get a sense of the rather intense nationalist atmosphere in China these days as might be seen in signs declaring FUCK YOU 狗日 (which I think means "Fuck You Japanese Dogs").

Wednesday, April 20, 2005

The Bolton Nomination: Why Personality Matters in Diplomacy

I have held back from blogging on the Bolton nomination in part because we learned precious little (as Julian noted here) at his confirmation hearing about what, precisely, Bush II plans to do at, with, or through the United Nations. I think there is plenty in Bolton's prior writings and statements to demonstrate that he is a bad fit for the UN, but without knowing his marching orders from Bush or Secretary Rice, it is difficult to judge it on the merits. (For some observations on the marked absence of any substantive articulation of the direction of Bush II foreign policy, see this Washington Post op ed by Derek Chollet over at Democracy Arsenal.) At first, the allegations of Bolton's imperious attitude and his "kiss up, kick down" approach to management struck me as pretty typical behavior of politically ambitious Washington functionaries of both parties, not necessarily grounds for disqualification of a presidential nominee, per se, and certainly not the kind of behavior your typical US Senator would recognize as problematic (uh, "glass houses" anyone?). But the latest round of allegations about Bolton's poor personality and behavior has made even a few Republican Senators queasy and has prompted a two-week delay in the Senate vote. Whether it will ultimately doom his nomination remains to be seen, but it is starting to look like Bolton's personality alone might make him the wrong man for the UN job.

Personality and character matter in diplomacy. Bolton wasn't nominated to be Deputy Secretary of Agriculture; he is nominated to be the our country's representative to the United Nations. Only the President and Secretary of State have a higher profile as the face and voice of US foreign policy around the world. Just as we worry about personal character (or at least should) in federal judges, we should worry about personal character in our high-profile diplomats.

I do not mean to suggest that blunt, aggressive behavior -- or even behavior that other states perceive to be "obnoxious" -- is alone a disqualifier. Indeed, recent history suggests that such traits can actual serve US interests well at the UN (see, e.g., Moynihan, Kirkpatrick, Albright, Holbrooke). My guess is that the Bush team recognized these traits in Bolton and the potential utility in deploying them to shake things up on the East River. But these current allegations go beyond blunt talk and gruff outbursts. Harassment of subordinates and opposite numbers is not only personally offensive, but also counterproductive to good policy. Alienating the internal team cuts off internal debate and discussion of policy options; alienating your counterparts limits options for cooperation. Both can lead to isolation of the principal, which leads to bad outcomes.

Consider the old adage that describes diplomacy as "the art of telling someone to go to hell in such a way that he looks forward to the trip." Bolton seems to have mastered only the first part.

Spanish Court Convicts Argentine under Universal Jurisdiction

Adolfo Scilingo, a former Argentine Naval officer, was convicted by a Spanish court for crimes against humanity. This is the first such conviction under universal jurisdicition is Spain (that is, at issue here is not any croime against Spansih citizens or against the laws of Spain, per se, but rather acts that any country should be able to prosecute under international law). A CNN report about the case is here. For more on universal jurisdiction, see this post.

Scilingo had taken part in activities conducted by the military junta that ruled Argentina in the 1970's and early 1980's; in particular, Scilingo admitted to taking about 30 opponents of the regime and tossing them to their deaths from airplanes. He had come to Spain willingly to testify and was subsequently held on the basis of his testimony. He has been sentenced to 640 years although, under Spansih law, he will serve no more than 30.

The investigating judge in this case is Baltazar Garzon, the same judge who investigated Chilean ex-President Augusto Pinochet. Garzon has indicted approximately 40 other memebers of the Argentine military; one, Ricardo Miguel Cavallo, is in Spansih custody.

ICC Watch: More Details on ICC-Uganda Understanding

This report gives a bit more detail to the non-agreement agreement between the ICC Prosecutor and the Ugandan leaders who visited the Hague last week. The statements by the ICC Prosecutor shows the limits of his discretion under the ICC Statute and, perhaps, why the ICC will always be a potential obstacle to settlement of an ongoing conflict. The ICC Prosecutor

As soon as there is a solution to end the violence and if the prosecution is not serving the interest of justice, then my duty is to stop investigation and prosecution...I will stop but I will not close...Timing is possible but immunity is not possible.

As a legal matter, I'm not so sure that the ICC Statute prohibits grants of immunity. Article 53(2)(c) appears to give the ICC Prosecutor a fair amount of discretion. It states that the ICC prosecutor may conclude there is not sufficient basis for a prosecution because:

A prosecution is not in the interests of justice, taking into account all the circumstances, including the gravity of the crime, the interests of victims and the age or infirmity of the alleged perpetrator, and his or her role in the alleged crime;

I'm no expert on the ICC Statute but interpreting this provision somewhat narrowly to exclude immunity seems about right. But such an interpretation is not obviously helpful toward settling the ongoing Ugandan civil war with the Lord's Resistance Army because no matter what the Ugandan government does, the LRA leaders are going to be exposed to prosecution.

In a piece of terrible timing, the Tokyo High Court has denied the appeal of a group of 10 Chinese plaintiffs seeking compensation for Japanese WWII atrocities. This decision comes just as the Japanese Foreign Minister left China without having resolved rising tensions and as the stocks of Japanese companies doing business in China plummet. Although I can't get access to the case (and can't read Japanese anyway), reports suggest the Tokyo High Court held that China may have waived the rights of its nationals to seek damages in domestic courts through its peace treaty with Japan. If this is the correct reading of the Sino-Japanese Peace treaties, then the Chinese protestors might also direct a little bit of their anger toward their own government, which may have been complicit in letting the Japanese off the hook, and which is now cynically manipulating their anti-Japanese sentiment for their own purposes.

Monday, April 18, 2005

A Win for International Labor Rights? Nike Discloses Overseas Factories

Last week, Nike disclosed a list of all 700 of its overseas production facilities -- including factories in China, Thailand, Mexico and Turkey. It has also admitted that abusive working conditions have been uncovered in several Nike facilities. All of this comes as part of Nike's settlement of the 1998 Kasky case alleging that Nike's earlier defenses of its labor practices amounted to misrepresentation.

This is an important first in the struggle for transparency in international labor practices. Multinational corporations have generally been reluctant to disclose specific contracts with producers in the developing world under the guise of protecting trade secrets. What corporations really want to avoid is the harsh light of publicity about working conditions in their factories (health and safety problems, child labor, physical abuse, long working hours, less than subsistence wages) from trade unions and human rights NGOs. Nike, itself the subject of negative publicity campaigns and product boycotts in the 1990s because of conditions in its Asian factories (see, e.g., here and here), worked alongside union representatives and human rights activists in reaching the decision to disclose their supply chain.

Labor rights is an area corporations have typically preferred to keep "self-regulated" or subject only to guidelines, as opposed to binding treaties (see, e.g., the OECD Guidelines for MNEs here), on the ground that less regulation promotes competition and helps grow the economies of the labor-providing countries. The move by Nike, which alone employs over 650,000 contract workers around the world, may demonstrate that self-regulation, when combined with the pressure of litigation and far-reaching publicity campaigns, can work. Nike is clearly staking out the high ground among socially conscious consumers and interest groups in the US and Europe with this move; other corporations should follow. Transparency is good for everyone. Let's see if conditions improve as a result.

Forgiveness: An Alternative to ICC Prosecution for Atrocities

Among the many criticisms of the ICC, is the idea that prosecution is not always the appropriate means through which to address atrocities and heal the societal wounds imposed by conflict. The Milosevic case, which Julian discussed earlier here, is but one example of how prosecution -- mired in technicalities, delayed for years and removed from the site of the crimes -- plays, at best, only a small role in the reconciliation needed for reconstruction after war, and at worst, actually interferes with reconciliation. This article in today's NY Times discusses efforts in Uganda to use traditional methods of forgiveness and reconciliation to welcome back into the community people who committed crimes (in some cases, were coerced to commit crimes at a young age) in the rebel war against the Museveni government. As Julian notes, the ICC has been consulting with the leaders in the northern region of Uganda, but is also on the verge of issuing arrest warrants against some of the rebels -- a move which many in Uganda oppose. (Read this earlier joint statement by the Acholi leaders and the ICC carefully; the ICC has not agreed to recognize locally conferred "amnesties" -- that's where the two processes clash.) This excerpt from the NYT describes the Acholi forgiveness ceremony:

The other day, an assembly of Acholi chiefs put the notion of forgiveness into action. As they looked on, 28 young men and women who had recently defected from the rebels lined up according to rank on a hilltop overlooking this war-scared regional capital, with a one-legged lieutenant colonel in the lead and some adolescent privates bringing up the rear. They had killed and maimed together. They had raped and pillaged. One after the other, they stuck their bare right feet in a freshly cracked egg, with the lieutenant colonel, who lost his right leg to a bomb, inserting his right crutch in the egg instead. The egg symbolizes innocent life, according to local custom, and by dabbing themselves in it the killers are restoring themselves to the way they used to be.Next, the former fighters brushed against the branch of a pobo tree, which symbolically cleansed them. By stepping over a pole, they were welcomed back into the community by Mr. Acana and the other chiefs. "I ask for your forgiveness," said Charles Otim, 34, the rebel lieutenant colonel, who had been abducted by the rebels himself, at the age of 16, early in the war. "We have wronged you."

Similar to the Gacaca process in Rwanda, and the earlier truth and reconciliation commissions in South Africa and El Salvador, this traditional ceremony requires a confession before the perpetrator is welcomed back. (I recommend the documentary film "Gacaca" for an excellent overview of the Gacaca process and the challenges faced in reconstructing Rwandan society post-genocide.) The power of apology and forgiveness in the process of reconciliation and dispute resolution has been the subject of scholarship in both the domestic (see this study by my colleague Jennifer Robbennolt on the role of apology in litigation settlement) and international contexts. Martha Minnow's 1999 book "Between Vengeance and Forgiveness" is a great place to start exploring the complexity of building a society in the wake of mass violence. Law and legal prosecution have their place, but it's important that supporters of the ICC don't let their enthusiasm for the institution get in the way of real reconciliation and reconstruction.

Sunday, April 17, 2005

A U.N. Treaty We Can All Support

The General Assembly endorsed by consensus Friday the International Convention on the Suppression of Acts of Nuclear Terrorism . The treaty sets up useful legal definitions of nuclear materials and imposes obligations on signatories to pass laws outlawing nuclear terrorism, to cooperate in exchange of information on terrorists, and to prosecute or extradite alleged nuclear terrorists (but not extradition to an international court). The U.S. is a big winner, as this State Department release suggests. The product of nine years of deliberation and a breakthrough was finally reached when it was agreed that military forces using nuclear weapons will not fall within the treaty's cope. I presume this no-brainer treaty will sail through the U.S. Senate.

Milosevic v. the ICTY: Milosevic is Winning

I didn't notice until today this devastating WSJ article ($) about the interminable Milosevic trial at the International Tribunal for the Former Yugoslavia in the Hague. ("ICTY"). Since it is behind a firewall, let me excerpt the highlights and hope the WSJ puts it on their opinionjournal.com free website eventually.

As it enters its fourth year, the world's biggest war crimes case since Nuremberg has become too long, too complex and simply too boring for most to follow. The end is not yet in sight and, judges on his panel openly fear, might never come. Some people at the U.N. tribunal fear that the Milosevic case might even succeed in destroying this court with the sheer weight of its tedium.

Unsurprisingly, there is a whiff of desperation about it all. The international media have long skipped town, leaving only a handful of Balkan journalists and international NGOs. Mr. Milosevic has already managed to outlive one judge on his panel. Even if the case finishes within the coming year as the original schedule foresees, it will still have roughly matched the combined length of the three wars in which the alleged crimes were committed.I sat in on a few hours of the Milosevic trial (nearly 3 years ago) and it was impossible to stay awake even then (even in translation). So I know what the writer is talking about. To be fair, the writer is still optimistic about international criminal justice in general. Still, if Milosevic is eventually acquitted, this would be a major body blow to the burgeoning international criminal justice movement.

ICC Watch: Prosecutor, Northern Ugandan Leaders Issue Joint Statement

After several days of meetings, the ICC Prosecutor and Northern Ugandan leaders have issued a joint statement pledging to work together in the prosecution of alleged war crimes while at the same time trying to work out a peace agreement. The statement says absolutely nothing of importance and does not, for instance, require the ICC Prosecutor to limit his investigations whatsover. But you have to give the ICC Prosecutor credit for making the effort to consult with local leaders at a very delicate time (for more discussion of the ICC's dealings with Uganda, see here).